After a couple gets divorced or separated, there are legal processes which the take to decide who the child/ren is to live with. Joint custody arrangements ensure that the child/ren gets to spend equal amount of time with both parents. Under joint custody arrangements the child divides his/her time equally among both parents.
Before we explore this topic, it is important to note that the term “custody” is now less commonly used. Australian legislation prefers using the term “parental responsibility” or “parenting arrangements” instead of “custody.”
When discussing joint custody arrangements, the one important factor is discussing how the child’s time is to be divided between both parents. More importantly, the term ‘legal custody’ is used to indicate which parent has the responsibility to make major decisions in the child’s life.
As mentioned above, this is called parental responsibility. According to Section 61B of the Family Law Act (1975), parental responsibility is defined as follows:
“Parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
Additionally, under Section 61DA of the Family Law Act (1975), it is stated that there is a presumption of equal shared parental responsibility for the child. In other words:
“When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child of the child’s parents to have equal shared parental responsibility for the child.”
Sole Custody Versus Joint Custody Arrangements
Sole custody, also referred to as sole parental responsibility, refers to a situation wherein only one parent has the capacity to make all decisions in the child’s life. This includes crucial decisions like where the child will attend school, the type of medial care they are to receive, and where the child is to live.
On the other hand, in joint custody arrangements, both parents will need to agree on these matters and make significant decisions accordingly. Under these arrangements, one parent cannot make any major decision without the consent of the other parent.
As mentioned above, family courts look at the best interests of the child in making any major decision around parenting orders. One of the primary considerations under best interests is that the child should have a meaningful relationship with both parents.
This is why the courts will encourage joint custody arrangements. However, in serious cases which involve family violence, abuse, or neglect, the court will grant sole custody to the parent who can provide the child with safety and protection.
In cases where the spouses split amicably, they can agree to make joint custody arrangements. This can be done mainly through parenting agreements. Parenting agreements are in the form of parenting plans and consent orders, or parenting orders.
Parenting Plans: This is a written record of the agreement between parents regarding the care of the child. These records are signed and dated. Parenting plans are not legally enforceable.
Consent Orders: Any written agreements that are approved by the Family Courts are called consent orders. For consent orders, an application needs to be made by relevant parties. When both parties reach an agreement, they can formalise or legalise the agreement through consent orders.
Consent orders are legally binding.
Parenting Orders: When parents are simply unable to reach an agreement on custody arrangements, or any matter related to parenting, they must approach the family court who will make a legally binding parenting order on their behalf.
Joint Custody Arrangements: Things To Remember
There are certain thumb-rules that parents should follow when trying to reach a satisfactory plan for joint custody arrangements. These include:
- Being realistic about personal schedules and commitments like work schedules;
- Not speaking poorly about the former spouse in front of the child/ren;
- Understanding that joint custody is not about any of the parents, but rather about the child;
- Creating a customised custody plan for the child/ren, this could include gauging the child’s personality, age, academic and extracurricular activities which they participate in;
- Finding an agreeable way to communicate;
- Understanding the importance of communication when co-parenting;
- Acknowledging that the failure of the relationship between parents need not reflect in relationship between the parent and child;
- Making the child/ren feel heard; and
- Reviewing the existing joint custody arrangements and amending them as and when required.
Examples Of Arrangements
1. One Week Off, One Week On: Alternate Weeks
Under this arrangement, the child will live with each parent on a week-by-week basis. This allows the child to have roughly equal time with each parent on an alternating basis.
Generally, this is considered by parents who live in close proximity to each other. This can be successful if the child has to attend one school, and can have the same social circle, despite moving from one house to the other on a weekly basis.
2. Alternate Weeks With Visits
Under this type, the child will alternate between each parent’s house on a weekly basis, but the other parent can go and visit the child during midweek.
2. Alternate Days
For younger children who cannot stay away from either parent for too long, the alternate day arrangement might be best. However, this will be practical only if both parents reside close to each other in the same area.
Under this type, the child resides with one parent throughout the school term, and with the other during all school holidays, including public holidays and vacations. Here, the time may not be divided equally between both parents, so other factors need to be considered.
#Note: These are some examples of plans that can be made, but ultimately it needs to be customised based on your family situation.
JB Solicitors’ Family Lawyers For You
We understand that parents go through a lot of stress after separating because they are concerned about their children.
As leading family lawyers, we know the importance of reaching agreements to ensure that the child is not impacted by the divorce or separation of his/her parents.
Because each family case is different, you need to come up with parenting plans which suit your specific circumstances.
We will understand your case, learn your schedules properly and assist clients in coming up with the most efficient arrangements which will satisfy both the parents, and children involved.
Contact our compassionate family lawyers today.